Critics of the Administrative State Have a History Problem

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Sophia Z. Lee –

For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. At stake is the structure of American government and its ability to address issues at the heart of political economy, from countering corporate power to protecting workers and the environment.

But these critics may be inviting in a Trojan Horse. Because most of them locate the Constitution’s meaning at the time of its ratification (an approach known as originalism), history plays a central role in their challenges. These days, they blame the administrative state’s fall from constitutional grace on the Progressive Era. However, as I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.

Those who seek to restore administrative law to its 19th century foundations – I will call them foundationalists – emphasize two key features that distinguish the 1800s from what followed. First, they argue that Congress legislated with far greater specificity, granting agency actors little to no discretion to adopt regulations that bound the public. Second, they contend that de novo judicial review (i.e., review without any deference to agency findings of fact or interpretations of law) was available for government actions implicating “core private rights” to life, liberty, and property. Agencies could issue final decisions only as to “public rights,” such as the distribution of public lands, and private “privileges,” such as a license to operate.

Scholars debate the historical accuracy of foundationalists’ claims about 19th century administrative law. Nonetheless, those claims are gaining traction in the conservative legal movement and the courts. Adoption of either of them today would work a major transformation of administrative law and contraction of the administrative state. For instance, in the area of environmental law, existing environmental regulations would be wiped away, along with the EPA’s authority to issue any such regulations in the future. Courts, not federal agencies, would have to determine wetland designations. And statutory interpretations by the EPA, which spurred Chevron deference, would no longer receive it.

But foundationalists may find 19th century administrative law to be a Trojan Horse. They have assumed without examination that courts played a primary role in constitutional interpretation during the 1800s, including by evaluating the constitutionality of agency action. New research casts doubt on that assumption. As I show in my article, agencies, not the courts, took the lead in interpreting and implementing the Constitution during the 19th century (a phenomenon known as “administrative constitutionalism”). And it appears that courts hardly reviewed the constitutionality of agency action at all.

For example, the first published state supreme court or federal court case I found in which a court addressed whether a federal officer had violated due process didn’t arise until 1863—and it was decided by the Pennsylvania Supreme Court. There wasn’t another case until the 1880s, when the Supreme Court issued two such decisions. Meanwhile, in the 1880s and 1890s the federal Land Office alone issued as many due process decisions as the state supreme courts and federal courts combined. Indeed, from the Founding through the late 19th century, agencies decided a wide array of constitutional structure and rights issues.

The history of administrative constitutionalism should trouble foundationalists. They hold out constitutional law as uniquely important: this is what powers their arguments that the United States should turn back the clock. And they prefer 19th century agencies because they assume that those agencies exercised little consequential legal power. Foundationalists are unlikely, then, to find appealing a 19th century in which agencies, not courts, took the lead in deciding constitutional questions, subject to some oversight by Congress and the President. As I explain in my article, however, new work suggests that those agencies had the first and often final word on the all-important Constitution’s meaning.

Foundationalists also assume that reinstating the 19th century constitutional order would empower courts to scrutinize agency action more closely than they do today. Instead, it would all but eliminate a key component of that scrutiny: judicial review of those actions’ constitutionality. That type of review, history shows, emerged from constitutional change, not origins, and is a feature of modern–not 19th century–administrative law and judicial practice.

The history of administrative constitutionalism alters the terrain of current debates about the constitutionality of the modern administrative state. There seems to be broad agreement that courts should scrutinize and conclusively determine the constitutionality of agency action, among those who want the courts to review the constitutionality of DACA or its retraction; or to question the retroactive application of a pro- or anti-labor NLRB decision. But reinstating the 19th century constitutional order will all but eliminate that type of review. Justifying it instead requires arguments grounded in changed circumstances or in independent normative and theoretical principles.

Yet if critics of the administrative state adopt the kind of arguments that can give courts primary authority to interpret the Constitution and hold agencies accountable to it, how will they explain making originalism our guide for all other matters?

Sophia Z. Lee is a Professor of Law and History at the University of Pennsylvania.